Commentary on Fisher: Better off than we were a year ago

Posted Mon, June 24th, 2013 5:39 pm by Roger Clegg

The case is undeniably a loss for the University of Texas and for supporters of racial preferences in university admissions, because a court of appeals ruling that upheld such discrimination has been vacated and remanded. The Supreme Court said today that strict scrutiny means strict scrutiny, and that what the court of appeals did was not strict enough. Grutter had also been criticized as not being strict enough, and so today’s decision amounts to a clarification of Grutter in that respect. The opponents of racial preferences are better off now than they were before the Court took the Fisher case.

On remand, the Court said that the lower courts “must assess whether the University has offered sufficient evidence that would prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.” For plaintiffs, this will mean challenging the extent to which considering race adds a benefit, when weighed against its inevitable costs. That is, if a nonracial admissions system would achieve similar benefits and with fewer costs, then the consideration of race cannot be said to have been narrowly tailored to the achievement of those benefits. The Court said that there must be “a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications.” And, it added, “[t]he reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.” A nondiscriminatory approach must be used if it “`could promote the substantial interest about as well and at tolerable administrative expense.’”

There is certainly enough in this language to justify an aggressive and thorough challenge to universities’ use of race in admissions. What are the benefits to using race, exactly – and how much, exactly, are those benefits of “diversity” enhanced by considering race, rather than by focusing just on nonracial characteristics like income or parents’ professions/educational level or geography or age or working experiences or whatever? As the Court noted, quoting from one of its earlier decisions, “[r]acial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity.’”

And, in addition, how much net benefit is left after you subtract the undeniable, myriad, and heavy costs of using race in admissions?

And what are those costs? So glad you asked: It is personally unfair, passes over better-qualified students, and sets a disturbing legal, political, and moral precedent in allowing racial discrimination; it creates resentment; it stigmatizes the so-called beneficiaries in the eyes of their classmates, teachers, and themselves, as well as future employers, clients, and patients; it mismatches African Americans and Latinos with institutions, setting them up for failure; it fosters a victim mindset, removes the incentive for academic excellence, and encourages separatism; it compromises the academic mission of the university and lowers the overall academic quality of the student body; it creates pressure to discriminate in grading and graduation; it breeds hypocrisy within the school and encourages a scofflaw attitude among college officials; it papers over the real social problem of why so many African Americans and Latinos are academically uncompetitive; and it gets states and schools involved in unsavory activities like deciding which racial and ethnic minorities will be favored and which ones not, and how much blood is needed to establish group membership – an untenable legal regime as America becomes an increasingly multiracial, multiethnic society and as individual Americans are themselves more and more likely to be multiracial and multiethnic (starting with our president).

Make the school document the benefits and rebut these costs.

And, in the meantime, others should ask University of Texas president Bill Powers, “Mr. Powers, just how much of the taxpayers’ money from the people of Texas are you willing to spend in litigation to justify your schools’ racial discrimination against the people of Texas, among others?”

In short, the struggle continues against racial preferences, with another Supreme Court decision today that should be helpful. And I should add that not only the ruling but the run-up to the ruling — in which it became clear how increasingly unpopular and discredited racial preferences in admissions are, even by liberals who had once supported them — will result in some serious soul-searching among university presidents on whether “diversity” is really worth the price of racial discrimination. At least, I hope so.

* * *

Practitioner’s note or concluding unscientific (and unhappy) footnote: The above is the (relatively) happy face on today’s decision, from my point of view. We’re better off than we were a year ago — but not, of course, as well off as we would like to be. We had hoped that the Court would put an end to this nonsense, and it didn’t. We would have liked it better if there had been four other Justices willing to join Justice Thomas’s excellent concurrence.

Could this have been avoided? Well, consider this exchange before the Court at oral argument:

“Counselor, are you asking this Court to overturn Grutter v. Bollinger?”

“Your honor, I am asking this Court to rule in favor of my client, Abigail Fisher. If you overturn Grutter v. Bollinger, you will be ruling in favor of my client, so that is certainly an outcome that I would welcome and be comfortable with. But it is also true that you can rule in favor of my client without overturning Grutter v. Bollinger.” [Blah, blah, blah.]

Alas, the exchange above did not take place at oral argument before the Court. The actual exchange, and the limited discussion of overturning Grutter in Fisher’s briefs – though not by her various amici – made it possible for Justice Kennedy’s opinion, and Justice Scalia’s terse concurrence, to say that the Court wasn’t being asked to overturn Grutter and so it wasn’t. Not wanting to appear too greedy or overreaching, counsel ended up making a dubious concession at oral argument (the latter is usually a bigger danger than the former).

Or maybe that’s too harsh. After all, Supreme Court Justices can do pretty much what they would like to do, at least when it comes to writing opinions, and they could have written more expansively than they did. Fisher’s stance on Grutter was, moreover, not unambiguous.

On the other hand (I’m up to my third hand now, I think), when the Court decides to be aggressive, it uses up institutional capital of a sort, and maybe that was part of what was happening here. But still (fourth hand), if ever there were a case where the expenditure of institutional capital was justified, this was it. Racial preferences are doubleplusungood. And, given the unpopularity of racial preferences, I’m not sure that much institutional capital would have been used up with anyone but the bien-pensant pundits and academics.

Consider all this, by the way, in the context of trying to figure out why the Court spent so long to write a thirteen-page, seven-to-one decision. Was there a more definitive draft that finally failed to command a majority because, in part, of a fear that the Court might be seen as “overreaching”? But at this point I’ve finally run out of hands.

For those who are disappointed by today’s decision, pour yourself a stiff drink tonight and read Justice Thomas’s concurrence. It’s fifty percent longer than Justice Kennedy’s opinion for the Court, and lots better, too. Then get a good night’s sleep, because the fight will have to continue for a while longer, I am afraid.

Roger Clegg is president and general counsel of the Center for Equal Opportunity, which joined and helped write amicus briefs filed by Pacific Legal Foundation on behalf of Abigail Fisher before the Fifth Circuit and the Supreme Court (at both the petition and merits stages).

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices met for their December 9 conference; Honeycutt v. United States.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.